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Does The Executor Have The Final Say?

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Family disagreement on will

The executor of a will is in charge of making sure the wishes of the deceased are carried out, as well as handling the final affairs of the estate. The executor has authority from the county probate court to act in this role, but that doesn’t necessarily mean that the executor has the final say on all decisions regarding the estate.

What Can an Executor Do?

does the executor have the final say

An executor has the authority from the probate court to manage the affairs of the estate. Executors can use the money in the estate in whatever way they determine best for the estate and for fulfilling the decedent’s wishes. Typically, this will amount to paying off debts and transferring bequests to the beneficiaries according to the terms of the will.

There may be a case where the estate has more debts than it has available assets to pay them. This is what’s called insolvency. If the estate is insolvent, the executor will decide how to readjust things such that all debts can be paid. This could involve reducing inheritances or liquidating large assets.

What Can’t an Executor Do?

The biggest limitation on an executor’s actions is that he or she is a fiduciary to the estate. This means executors must to act in the best interest of the estate at all times. For every decision you make as an executor, you should be able to explain how that is the best choice for the interests of the estate.

This requirement is intended to curb executors conducting the affairs of the estate in their own self-interest. It’s particularly important when the executor is also a beneficiary. Because the law gives executors a good deal of power in directing the assets of the estate, the court takes this measure to address any potential conflicts of interest.

What Happens if There Is a Dispute?

does the executor have the final say

Beneficiaries may disagree with the contents of a will or decisions that executors make. It’s important to note here that attempts to contest a will that the deceased has signed and properly written rarely succeed. In most cases, beneficiaries can’t go to the court and contest an executor simply because they disagree with one or more of the executor’s decisions.

In order for the court to remove an executor, someone (usually a beneficiary) must prove that the executor has engaged in misconduct or is otherwise incompetent. Executor misconduct can take many forms. Examples include a failure to record the will in probate court; failure to pay estate debts; using estate funds for personal expenses; and failure to distribute assets according to the will.

If you can prove to the court that the current executor is incompetent or mishandled the affairs of the estate, the court will relieve that executor and choose a replacement. If the will names an alternate executor, that will likely be the court’s choice. Otherwise, each court has a priority list of individuals to appoint as executor. The lists vary from court to court, but surviving spouses and adult children are typically very high on the list.

The Takeaway

The executor of a will has a big job. Collecting assets, paying debts and distributing inheritances, all while documenting the process correctly with the courts, can take significant time and energy. To effectively complete the task, the executor needs formal authority to spend money from the estate and otherwise manage affairs. The executor can even decide if and how bequests should be altered in the case of insolvency.

That authority isn’t without limits, however. He or she must always be acting in the best interest of the estate. Like any job, there are systems in place to hold executors accountable and ensure that no executor is misusing their authority. When you’re naming your own executor, it’s crucial that you choose someone whom you know to be both highly competent and highly trustworthy.

Tips for Planning Your Estate
  • Larger estates may be subject to estate taxes. If you don’t want your estate gobbled up by taxes, plan ahead. You can gift portions of your estate in advance to heirs or set up a trust.
  • When in doubt, get help. Estate planning can be tricky, especially as your estate grows in size. Don’t hesitate to find a financial advisor or an attorney to help you get your affairs in order and build a financial plan that provides for you and your family.

Photo credit: iStock.com/AlexRaths, iStock.com/fizkes, iStock.com/pixelfit

The post Does The Executor Have The Final Say? appeared first on SmartAsset Blog.

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